delivered the following dissenting opinion:
The petition in this case alleges, and the demurrer admits, that the old depot “for freight and passengers which had pre*689viously been built by tbe West & East Railroad Company, at tbe outer verge of the town of Lexington, is, and always has been, inconvenient and inaccessible to tbe inhabitants and business people of tbe town of Lexington and those who use defendant’s railroad to go to and come from Lexington, and was never such' a depot as was reasonably necessary for public convenience,” and that tbe site of tbe proposed new depot is convenient and accessible, etc. Tbe demurrer admits these facts, and tbe contention really comes to this: Eirst, that in a town having tbe population fixed by our statutes tbe railroad commission is without power to establish two depots where tbe depots are both for freight and passenger traffic; and, second, that tbe railroad commission is without power to establish any new ■ passenger depot while at tbe same time permitting tbe railroad company to have its freight depot where tbe passenger depot is or to use its old passenger depot for freight purposes. Tbe order of tbe railroad commission is as follows:
“Be it remembered that this day there came on to be beard tbe application of tbe citizens and of tbe town council of Lexington, Miss., for tbe establishment of a depot at or near Wilson’s crossing, on tbe line of tbe Yazoo & Mississippi Valley Railroad Company, in said town; and it appearing that said application had been beard at a previous meeting of tbe Mississippi railroad commission, and that after bearing evidence and argument said application bad been sustained, and the passenger depot ordered to be erected by said railroad company on its line at Wilson’s crossing; and it further appearing that said order had„ been suspended by a subsequent order entered by this board, and after said suspension all of tbe members of this commission, on May 3, 1905, went to Lexington, Miss., and in tbe presence of tbe representatives of the said railroad company, and of tbe petitioners, .examined the present depot at Lexington and its surroundings, and tbe site of the proposed new depot and its surroundings, and all circumstances relating to tbe respective advantages and *690disadvantages of the two sites; and having heard evidence from each side and arguments from each, presenting their respective views of the matter in controversy, and having since duly considered the same, and being of opinion that the inconvenience and inaccessibility of the present passenger depot, as compared with the proposed new site, requires, with due regard to the interest of said railroad company and the public convenience, that a passenger depot should be built at Wilson’s crossing, in said town of Lexington, Miss. — it is, therefore, ordered and adjudged that the Yazoo & Mississippi Yalley Railroad Company be, and it is hereby, required and ordered to locate and establish and build a passenger depot on the north side of its main line in the town of Lexington and within four hundred feet of Wilson’s crossing, and that said depot be of fair size, with separate apartments of sufficient size for the. two races, and with ticket office and room for baggage, and that plans and specifications for said depot be submitted at the next meeting of this board, and that said building be completed and in operation on or before the first day of September, 1904, and that, whenever depot facilities are afforded at the new depot herein ordered, said railroad company be authorized to cease stopping its trains at the present depot, except so far as may be required for freight.”
As I understand this order, it establishes a new passenger, depot, because the old one is inconvenient and inaccessible and does not meet the requirements of the public, but merely permits or authorizes the railroad company to continue to use the old depot for freight if it chooses. Code 1892, § § 4302, 4309, 4311, provides as follows:
“Section 4302. Every railroad shall establish and maintain such depots as shall be reasonably necessary for the public convenience, and shall stop such of its passenger and freight trains at any depot as the business and public convenience shall require; and the commission may cause all passenger trains to *691permit passengers to get on and off in a city at any place other than at the depot where it is for the convenience of the traveling public. And it shall be unlawful for any railroad to abolish or disuse any depot when once established, or to fail to keep up the same and to regularly stop the trains thereat, without the consent of the commission, . . .
“Section 4309. The commission may designate the site or location of any new building- or station house which may be ordered erected in cases where the site selected by the railroad officials is inconvenient or inaccessible; but every depot must be located with due regard to the interest of the railroad and'the public convenience. . . .
“Section 4311. The commission may require every railroad to provide sufficient depot, storage, and platform facilities, and shall hear all complaints that may be presented, in writing,' as to insufficient depot, storage, or platform facilities for freight, and shall make such order thereon to secure the same as the facts and the public convenience may. warrant.”
(1) I do not think that any fair construction of these sections will result in holding that the commission cannot order a new passenger depot in a town, even, unless the old one has -first been destroyed or abandoned and the railroad company has itself selected a site for a new one. I believe that in cities the railroad commission has power to require just as many depots constructed as the interest of the public may require. (3) Whether the railroad commission has the power, in a town, to compel the construction of a second, new depot for passengers, the old one being abandoned for passenger traffic, and at the same time require the railroad company to maintain a freight depot apart from the new passengér depot, is not necessary, in my judgment, to be decided at this time on this case. I interpret this order as simply commanding the erection of a new passenger depot. I do not understand it to command the railroad company to keep up the freight depot apart from the new passenger depot, but as *692simply authorizing — that is, permitting — the railroad company to use the old passenger depot for freight purposes if the railroad company so chooses. ' It was a very simple matter for the railroad company to build a freight depot together with the passenger depot, if it had seen fit to do so; and from the language of the order, I think that the commission wisely avoided any command to the railroad company to maintain the freight depot at its old place while constructing a new passenger depot. In short, so far as the freight depot is concerned, the commission left the company to keep it where it was or to build it with the new passenger depot as it chose. This, to my mind, is the plain meaning of the order. Our own cases—State v. A. & V. Ry. Co., 67 Miss., 647 (7 South. Rep., 502); State v. A. & V. Ry. Co., 68 Miss., 653 (9 South. Rep., 469)—expressly hold, as I understand 'them, that the railroad commission has the power to establish a new depot where the public business requires it. The latter case deals expressly with the power of establishing a new passenger depot. But the court stated what seems to me obvious, in 68 Miss., 659 (9 South. Rep., 470)—that the reasons for making the proposed change of site and for a separation of the freight and passenger business are great and apparent. It seems to me that these reasons would be great aud apparent in a multitude of instances that may be conceived in cities; and why may not the same reasons exist to authorize the commission to separate the freight and passenger business, even in a town where all that the commission does is to establish one passenger depot? But, as stated, the commission has not even required this separation in this case. It has merely established a- new passenger depot and permitted the company, as to its freight depot, either to add that to the new passenger depot or retain it where it is, at its pleasure. The case in 67 Miss. (7 South. Rep.) squarely decides that, even at a place like Lake station— not even a town, according to the statutory definition of a town, at that time — the railroad commission might, under the act of *693March 14, 1888, and the act of March 11, 1884, the former practically the same as the present statute, require a new freight and passenger depot erected at a little place like Lake station. It seems to me that these authorities are conclusive of the power of the commission to at least erect a new passenger depot and leave the railroad company to add a freight depot to the new passenger depot or retain the old freight depot, at its pleasure; and that, it seems to me, is all that this order of the commission does.
I think the power of the commission ought not to be unduly abridged. 'Great pains seem to have been taken in this case to act with discretion. The railroad commission actually went to Lexington and carefully examined the local situation, besides hearing full evidence. Its judgment is presumptively correct, and the discretion lodged in it is necessarily very large, from the very nature of the duties it has to perform. Regard must be had, in the matter of establishing freight depots and passenger depots, to both the public interest and the interest of the railroad company; but usually the number of depots, whether freight or passenger, and the separation of passenger depots from freight depots, are matters which must be left to the sound discretion of the railroad commission, acting upon full evidence and having in view the needs and demands of the rapidly-increasing population of towns and cities and the large development of the various business interests located therein. It is said that the provision that in cities there may be more stopping places than one indicates that there may not be more than one passenger depot in a town. Conceding, for the sake of the argument, the soundness of this view, I do not think it touches the present case, in my view of what the order of the commission means. I will refer, also, to authorities supporting my view generally. See the cases cited by the learned counsel for appellee—to wit, Hunt v. Chicago, etc., 130 Ill., 175 (22 N. E. Rep., 857); State v. Railroad Co. (Neb.), 24 N. W. Rep., 329 (52 Am. St. Rep., 424); *694Railroad Commissioners v. Portland & O. C. R. Co. (Me.), 18 Am. St. Rep., 208; Northern Pac. R. R. Co. v. Territory of Washington, 142 U. S., 492 (12 Sup. Ct., 283; 35 L. ed., 1092) the last case being cited by the learned counsel for the appellant.